The problem with the cookie wall is not the cookie wall

Some online newspapers recently chose to make previously free columns available in exchange for consent to processing (non-personal) data. This choice has raised protests among users, and the announcement of an in-depth analysis by the Italian Data Protection Authority (from which, but this is another story, an answer is still awaited on the question of the possibility for the American authorities to request data on European citizens located in the EU) by Andrea Monti – Initially published in Italian by Strategikon – an Italian Tech blogMuch ado about nothing, one would comment by citing the Bard since, for twenty-two years, the same Data Protection Authority  and the Market Regulator have  recognized the legitimacy, in the abstract, of “data in exchange for services”. Furthermore, ruling number 17278/2018 of the first civil section of the Court of Cassation established the principle of law according to which

the law does not prohibit the exchange of personal data, but nevertheless requires that such exchange is the result of a full and in no way coerced consent.

In the case of online newspapers, then, there is not even the user’s right to access content for free. Therefore, they are entitled to ask for a fee in currency or – as happens – in cookies which, moreover, as mentioned, do not necessarily allow the processing of personal data. In fact, since 2016, the EU Court of Justice has established that an IP is personal data only when it identifies a natural person. Therefore, it is easy to understand that when I connect to without logging in, at most, the analytics platform will be able to generate a fingerprint of the system I am using and associate it with the interaction with the site. Still, not it will certainly know who is behind a computer that, moreover, goes online with a NAT-handled IP number (ie not with the internal IP assigned to the specific device). So, regardless of consent, the newspaper would not be processing personal data because it has no idea who I am.

However, in the Caffeine Media case (which gave rise to the Google Analytics madness), the Data Protection Authority forced the reading of the GDPR. The Authority equated the fingerprint and the IP of an anonymous user accessing online content without registration or other forms of identification to a registered user providing further information about himself. By applying this questionable interpretation conceived by the Italian Guarantor, it should be concluded that the use of the cookie wall is subject to the legislation in question. But, it should also be recognized, for the reasons already explained, that these are in principle legitimate activities and, therefore, not worthy of particular attention or stigma.

I have no doubt that an exercise of Byzantine normative exegesis by the authorities can justify different and draconian readings of the provisions. This is the classic problem of law, which is ‘done’ by those who have the power to impose it and not by the rational comparison of different theses, logically debated.

Beyond these aspects, however, the issue of ‘data in exchange for services’ raises a much more serious question: the real economic sustainability of such a model.

In other words, we should ask ourselves whether it is possible to establish a link between data collection, processing and revenue generation for those who have used it to sell a product or service. Or, being blunt, one should wonder if data-driven advertising isn’t a scam, reminding the joke of the barrel of herrings being bought and sold at an increasing price in the New York ghetto. Everything went fine until a gentile opened it instead of keep selling it. He found the fish rotten, thus breaking the chain of transactions. Is the (data-based marketing) king, naked?

Cookie and tracker marketing is a bubble like the ‘likes economy’ used to measure online content’s value. Neither of them allows automatic discovery of whether the subject, given a personalized banner and clicked it, has actually proceeded to buy the advertised good.

Therefore, those who work at the intermediate levels (SEO experts, data sellers, etc.) are sure to be paid in the value chain linked to digital marketing. By contrast, there is no guarantee for those who believe that collecting data could be valuable. They would soon discover that all this mass of information produces “certainly certain” costs and certainly uncertain returns.

And while we are talking about costs and returns, the zealous ‘privacy priests’ should be asked why, instead of getting angry because they can no longer read news for free, they are not doing their part to help ensure the survival of professional information, paying access to the platforms in hard cash. As Riccardo Luna writes,

journalism is not a social enterprise paid for by the state but is rewarded with the revenues it can generate. Two decades of gratuitousness have led us to an ever worse quality of information. It is time to try to change course. Return to investing in journalism.



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